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Wednesday, October 12, 2016

The respondent no.1 shall forthwith submit a formal application in writing addressed to the competent Authority of the appellant Corporation reiterating the assurance given in the undertaking filed before the High Court; and also to abide by such terms and conditions as may be imposed by the Corporation in lieu of acceptance of the proposal for extension of time to complete the construction in conformity with the original plan sanctioned by the Local Planning Authority upto ground floor + 6 floors. The respondent no.1 must also assure the Corporation that he will take corrective measures to remedy the deviations mentioned in the notice dated 16.05.2012 given by the Corporation and also any other or further deviations noticed or indicated by the Corporation within the time specified in that behalf. On receipt of such written request cum commitment from the respondent no.1, the competent Authority of the Corporation may examine the proposal and after conducting a survey of the building, record its satisfaction that the construction completed by the respondent no.1 is in conformity with the original sanction granted by the Local Planning Authority on 25.04.2009 in respect of ground floor + 6 floors + (1 light roofing ceiling) and also conforms to the applicable Rules and provisions. If the Authority is satisfied in that behalf, may pass an appropriate order including to specify additional terms and conditions to be fulfilled by the respondent no.1 as a condition precedent for grant of extension of time to complete the construction. That decision be taken within 8 weeks from the receipt of the written request from the respondent no.1. Only after a formal order is passed by the competent Authority of the Corporation to grant extension of time to complete the construction and thereafter issuance of a completion certificate upon removing all the deviations, respondent no.1 will be free to effectively use and occupy the building for the purpose for which it has been allowed by the Local Planning Authority. We once again reiterate that all other questions raised in this appeal by the appellant Corporation are left open, to be considered if and when necessary.

                                                    Non-reportable

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.10425 OF 2014

The Madurai Corporation                                  ...Appellant.

                                   Versus

P. Kayalvizhi & Ors.                                     …Respondents.



                                  JUDGMENT

A. M. KHANWILKAR, J.

      Application for early hearing is allowed.
2.    The respondent no.1 had filed a writ petition  under  Article  226  of
the Constitution of India bearing Writ Petition (MD) No.9854 of 2012,  which
was allowed by the learned Single Judge on the following terms:

“6.   In view of the above, this  Court  is  of  the  view  that  since  the
petitioner is not inclined to put up further construction, there is no  need
for the petitioner to get permission  from  the  Local  Planning  Authority.
Under  such  circumstances,  recording  the   undertaking   given   by   the
petitioner, this Court is inclined to give a direction  to  the  respondents
to grant renewal of permission for the construction, so that the  petitioner
can complete the building work which was already constructed. The  affidavit
of undertaking given by the petitioner is placed on record. The  respondents
are directed to grant renewal of  permission  so  that  the  petitioner  can
finish the building which was already constructed by her,  within  a  period
of two weeks from the date of receipt of a copy of this order.

7.    Accordingly, the writ petition is disposed of No costs.”


The appellant - Corporation filed a  Writ  Appeal  being  Writ  Appeal  (MD)
No.763 of 2013. That was dismissed by the Division Bench  vide  order  dated
21.8.2013. These decisions are the subject  matter  of  the  present  appeal
filed by the Corporation.

3.    The principal issue considered by the  learned  Single  Judge  of  the
High Court was whether the appellant was the Competent  Authority  to  grant
an extension of time to the respondent no.1 for completing the  construction
of the building, which was commenced on the basis of  a  sanction  given  by
the Local Planning Authority, Madurai on 25.04.2009. The sanction  given  by
the said Authority was attached with a condition that  the  construction  of
the proposed building upto 11 floors, should be completed by the  respondent
no.1 within two years therefrom. The  respondent  no.1  within  such  period
could construct only upto 6 floors. As the respondent  no.1  was  unable  to
comply with  the  condition  of  completing  the  construction  as  per  the
sanctioned plan within two years, he submitted an application on  11.04.2011
to the appellant - Corporation for an  extension  of  time.  The  respondent
no.1 was called upon to submit an application in Form 8,  which  requirement
was compiled by him.  The  appellant,  however,  affixed  a  notice  on  the
construction site purported to be under Sections 282, 296(1) and  296(2)  of
the  Madurai  City  Municipal  Corporation  Act,  pointing  out   that   the
respondent no.1 had deviated from the original plan in respect of  (a)  lift
(b) stair case to the building and (c) instead of a swimming  pool  open  to
the sky, a hall was constructed on the first floor  of  the  building  under
construction. Based on the said proceedings, the  Corporation  rejected  the
application submitted by respondent no.1 for extension of time  to  complete
the  construction,  vide  order  dated  21.06.2012.  The   respondent   no.1
challenged that order by way of writ petition. During pendency of  the  said
writ petition, the  respondent  no.1  filed  an  affidavit  cum  undertaking
assuring the Authority that  he  would  complete  the  construction  of  the
building only up to Ground floor + 6 floors + (1 light roofing ceiling)  and
would take corrective steps to remedy the  deviations  pointed  out  in  the
notice affixed on the construction site. The appellant,  however,  contended
that it was not the Competent Authority to grant extension of  time  as  the
sanction was originally granted by the Authority under the Town and  Country
Planning Act. This contention did not find favour with  the  learned  Single
Judge. As a result, the learned  Single  Judge  allowed  the  writ  petition
filed by respondent no.1 in terms of order dated 21.08.2013.  The  operative
part of the said order has been reproduced in paragraph  2  above.  For  the
same reason, the Division Bench of the High Court declined to  interfere  in
the writ appeal filed by the appellant.

4.    The respondent no.1 in the present  appeal  has  reiterated  the  plea
taken before the  High  Court  that  he  would  not  carry  on  any  further
construction beyond Ground Floor  +  6  floors.  The  respondent  no.1  also
asserts that the construction  of  the  building  upto  6  floors  has  been
substantially completed. Further, the building can be  put  to  use  if  the
Corporation was to favourably consider  his  application  for  extension  of
time to complete such  construction.  It  is  contended  that  on  grant  of
extension, the construction will be completed upto 6 floors in all  respects
including by curing the deviations within the extended time,  in  conformity
with the original sanction given by the  Town  Planning  Authority  in  that
behalf. In other words, the respondent no.1 was not interested  in  carrying
on with construction of additional floors, though sanctioned  by  the  Local
Planning Authority of Madurai. In this backdrop, the  appellant  was  called
upon to give its response. The Corporation has now taken an  informed  stand
that it will consider the request  of  the  respondent  no.1  for  grant  of
extension of time to complete the stated construction  of  the  building  as
per the Rules and provisions  as  may  be  applicable.  This  stand  of  the
Corporation has been communicated in writing to the  counsel  appearing  for
the Corporation before this Court.

5.    The respondent no.1 through counsel submits that the  respondent  no.1
will abide by the undertaking already given by him  before  the  High  Court
and also such terms and conditions as may be specified by  the  Corporation.
That assurance is accepted.

6.    In view of the above, it is unnecessary for us to  examine  the  wider
question involved in the present appeal.  This  appeal,  therefore,  can  be
disposed of in the following terms:

(1)         The respondent no.1 shall forthwith submit a formal  application
in  writing  addressed  to  the  competent  Authority   of   the   appellant
Corporation reiterating the assurance given in the undertaking filed  before
the High Court; and also to abide by such terms and  conditions  as  may  be
imposed by the Corporation  in  lieu  of  acceptance  of  the  proposal  for
extension of time to  complete  the  construction  in  conformity  with  the
original plan sanctioned by the Local Planning Authority upto  ground  floor
+ 6 floors. The respondent no.1 must also assure  the  Corporation  that  he
will take corrective measures to remedy  the  deviations  mentioned  in  the
notice dated 16.05.2012 given by the  Corporation  and  also  any  other  or
further deviations noticed or indicated by the Corporation within  the  time
specified in that behalf.

(2)         On receipt of such  written  request  cum  commitment  from  the
respondent no.1, the competent Authority of the Corporation may examine  the
proposal  and  after  conducting  a  survey  of  the  building,  record  its
satisfaction that the construction completed by the respondent  no.1  is  in
conformity  with  the  original  sanction  granted  by  the  Local  Planning
Authority on 25.04.2009 in respect of ground floor + 6  floors  +  (1  light
roofing ceiling) and also conforms to the applicable Rules  and  provisions.
If the Authority is satisfied in that behalf, may pass an appropriate  order
including to specify additional terms and conditions to be fulfilled by  the
respondent no.1 as a condition precedent for grant of extension of  time  to
complete the construction. That decision be taken within 8  weeks  from  the
receipt of the written request from the respondent no.1.

(3)         Only after a formal order is passed by the  competent  Authority
of the Corporation to grant extension of time to complete  the  construction
and thereafter issuance of a completion certificate upon  removing  all  the
deviations, respondent no.1 will be free to effectively use and  occupy  the
building for the purpose  for  which  it  has  been  allowed  by  the  Local
Planning Authority.

7.    We once again reiterate  that  all  other  questions  raised  in  this
appeal by the appellant Corporation are left open, to be considered  if  and
when necessary.

8.    Accordingly, this appeal is disposed of in the  above  terms  with  no
order as to cost.


…………………………..CJI
                                             (T.S.Thakur)


                               …………………………….J.
                                             (A.M.Khanwilkar)


New Delhi,
Dated: 7th October, 2016

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